How to File a
Medical Malpractice Lawsuit
Both lawyers and doctors have to invest a lot of time and money in many
medical malpractice lawsuits. This can include attorney time as well as court fees expert witness fees, and other expenses.
A medical malpractice claim can be filed when a healthcare professional is negligent or has acted in a manner that is illegal or committed an error or failed to act. The injured party may be able to seek compensation damages, which could include actual economic loss, such as the past and future medical bills as well as non-economic losses such as pain and suffering.
Complaint
A
medical malpractice lawsuit has many moving parts and requires credible evidence to succeed. The person who was injured (or their attorney if they have died) must show each of these legal aspects of the claim:
The defendant violated this duty. The defendant failed to meet this duty. That the breach directly caused injury to the plaintiff. This is referred to as "cause". A breach of a standard of care cannot cause injury on its own. It must be proved that it caused the injury directly and was the main reason for the injury.
To safeguard the rights of patients, and to ensure that a doctor does not commit further wrongdoing, it's necessary to file a report with the state medical board. A report is not a lawsuit, but it could be an excellent first step in getting the malpractice claim started. It is generally recommended to consult an Syracuse attorney for malpractice prior to filing a report or other type of document.
Summons
As part of the legal process a summons or claim form is filed with the court, and then delivered to the doctor who is the defendant. A lawyer for the plaintiff appointed by the court will examine these documents. If it appears that there could be a malpractice claim the lawyer is required to file an affidavit and complaint with the court, describing the claimed error.
The next step is obtaining evidence by pretrial disclosure. This includes the submission of requests for documentation like hospital billing and clinic notes, as well as taking depositions of the defendant's physician. Attorneys then will question the defendant under oath about the details of the case.
This information will be used by the plaintiff's lawyer to establish the elements of a claim for medical malpractice in the course of trial. The elements of a medical malpractice case include the existence of an obligation on the part of the doctor to provide care and treatments to patients, the physician's infraction of this obligation and a causal connection between the breach and injury or death of the patient, and a sufficient amount in damages to warrant a monetary compensation award.
Discovery
During the discovery phase where both parties are permitted to request any evidence relevant to their case. This includes medical records before and following the alleged malpractice, information about experts and tax returns, copies or other documentation that pertains to the out-of-pocket expenses that the plaintiff claims to have incurred, along with the names and contact information for any witnesses who appear at trial.
The majority of states have a statute of limitations that allows injured patients only some time after a medical mishap to bring a lawsuit. The time limit is set by the laws of the state and are subject to a rule known as the "discovery rules."
To prevail in a medical malpractice claim, an injured patient must show that a doctor's negligence caused specific harm, such as physical pain or loss of income. They must also prove causation -which means, that the negligent treatment was directly responsible for their injury or death.
Deposition
Depositions are question-and-answer sessions that are conducted in the presence of the court reporter who takes notes of both the questions and the answers. Depositions are part of the discovery process which is about gathering information that can be used in a trial.
Depositions permit attorneys to ask witnesses, often doctors to answer a series of questions. If a doctor is interrogated, they must answer all questions in a straight and honest manner under the oath. Typically, the doctor is asked questions by one attorney and is then cross-examined in the presence of another attorney. This is an essential stage of the process and requires the complete concentration and attention of the doctor.
A deposition allows attorneys to gain a thorough understanding of the doctor's qualifications in relation to his or his education, training, and experience. This information is essential to convincing the court that the doctor did not adhere to your standard of care and resulted in injury to you. For instance, doctors who have received training in the area of malpractice cases usually testify that they have vast experience in the execution of certain procedures and practices that may be relevant to a particular medical-malpractice claim.
Trial
A lawsuit in a civil court is launched when your lawyer is able to file a complaint as well as a summons with the court of your choice. This initiates a legal process of disclosure called discovery, which is where you and your doctor's team collaborate to collect evidence to prove your case. This usually includes medical records and testimony from an expert witness.
The purpose of proving malpractice is to establish that your doctor's actions were not in line with the standard of care. Your lawyer must convince jurors that it is more likely than not your injuries wouldn't have occurred if your doctor followed the standards of care. The lawyer representing your doctor will argue arguments that are contrary to the evidence presented by your lawyer.
Despite the belief that doctors are the target of fraudulent malpractice claims the decades of evidence shows that jury verdicts are based on reasonable judgments of negligence and damages and that juries are skeptical of inflated award amounts. The vast majority of malpractice cases settle before trial.